Are contributions to a spouse’s retirement accounts considered marital or separate property?

As a general rule, contributions to retirement accounts that are earned during the course of the marriage are considered marital property.

If contributions are earned both before and during the marriage, then you would have the situation in which some of it would be considered a non-marital portion, and then some of it would be considered a marital portion. And then you would determine that at the time it’s divided up in pursuant to the property division. You would have some expert do this.

In Illinois this is often done in procedure, which is through what’s called a qualified domestic relations order. And this is usually prepared by a third party who is an accountant or a tax keeper, or it can be an attorney but it’s a third party who is not exactly representing one of the sides. This third party looks at the estate and then divides it. The person looks to see if any money was earned before the marriage, and then that would constitute being non-marital income portion or non-marital earnings of the retirement accounts. Any money that was earned during the marriage would be considered into the marital portion.

There is a formula which is specifically known as the Hunt formula. This is applied by specific rules and you look at it. Again, anyone’s who’s familiar with this type of thing would understand that and know that it’s pretty standard. But again, it’s all fact specific and fact driven and if you have questions as to whether that applies to your case or not, then again I would say answer your questions to me or another experienced family lawyer like myself.

Sean Sullivan is a family lawyer practicing in the Elmhurst, Illinois area at the law offices of Laura M Urbik Kern, specializing in child custody and dissolution in divorce. Visit his website, www.laurakern.com, and Divorce Magazine profile.